Executive Directors Forum: Fehr, Upshaw, Hunter and Kelly Discuss the State of their Sports

This article includes highlights from the Executive Directors Forum at the Sports Lawyers Association Conference in San Francisco.

Donald Fehr, Executive Director and General Counsel, MLBPA

Mr. Fehr addressed a variety of issues, including the Mitchell Report:

George Mitchell had no agreement and no participation of the Players Association, effectively placing the Players Association in a classic adversarial position.

Mitchell refused to let the Players Association see the report until 1 hour before the press conference announcing his findings. This provided the named players and Players Association no opportunity to make corrections or substantially review the report.

George Mitchell was a private lawyer hired by Bud Selig. Accordingly, any conversations between players and Mitchell would not be protected by any privilege doctrines. Furthermore, a prosecutor would not be bound by any agreements between Mitchell and a player. What lawyer would suggest that his or her client speak with Mitchell and open himself up to possible prosecution?

The Mitchell Report was characterized by unfairness and a lack of due process. Players were named and had no real opportunity to respond or cross examine the sources who named them. All of the normal elements of the adversarial system, intended to ensure due process, were absent.

Performing enhancing drugs are not merely a problem in sports, by a societal problem.

Eugene Upshaw, Executive Director, NFLPA

Mr. Upshaw touched on the Collective Bargaining Agreement between NFL owners and the NFLPA:

NFL owners have an opt-out clause in November 2008, and have indicated that they intend to do so. If the owners do opt-out, 2009 will be the last season with a salary cap and 2010 will be an uncapped year.

Owners do not want to play players 60% of the overal revenues. However, the Players Association will not take less, setting up a potential showdown.

On the issue of retired players, the NFLPA made 21 improvements in the last 12 months – it set aside money for players with dementia; set up assisted living facilities and joint and hip replacement centers.

Mr. Upshaw took issue with the criticisms that he does not care about retired players and his former teammates, saying that anyone that criticizes him on that issue do not know him or hirs record.

Mr. Upshaw is optimistic that owners and the Players Association will have an agreement – “what is the alternative?”

Billy Hunter, Executive Director, NBAPA

Mr. Hunter spoke about the current status of affairs between the NBA and its Players Association, which he described as relatively quiet:

The argument that players need to spend more time in college before entering the pros is unavailing. Of the top 10 players in the NBA, 7 players entered the NBA directly from high school. The other 3 players only spent 1 year in college.

With respect to increasing the age limit for entering the NBA, the Players Association is “not going to give a gift to the NCAA money machine.”

Paul Kelly, Executive Director, NHLPA

Mr. Kelly spoke generally about the state of the NHL:

The on-ice product has never been better, there is a large crop of good young players and the next few player drafts appear strong.

The NHL is more international than other sports. In fact, NHL players will play a prominent role in the winter olympics with 175-200 players playing for their respective countries. The NHL will be emphasizing the international element of their sport, and will be more international games in the coming years. However, the NHL’s agreement with the International Ice Hockey Federation concerning transfer agreements is about to expire. There will not be an agreement going into this year’s NHL Draft. It remains to be seen how the NHL will be affected.

Larger numbers of college hockey players are leaving college early for the NHL, hurting the college programs. The NHL is looking to address the issue, but seeks to maximize options for young players and is not inclined to place restrictions on players entering the NHL.

The television issue is a primary issue for the NHL and the league continues to work on expanding coverage, and its options.

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